Bill H.3939

HOUSE DOCKET, NO. 4280 FILED ON: 4/20/2023

HOUSE . . . . . . . . . . . . . . . No. 3939

By Representative O'Day of West Boylston, a petition (subject to Joint Rule 12) of James J. O'Day relative to the mental well-being of new mothers facing criminal charges. The Judiciary.

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

An Act relative to the well-being of new mothers and infants.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 1 of Chapter 123 of the General Laws, as so appearing, is hereby amended by inserting at the end thereof the following new definitions:-

“Postpartum psychosis”, the most severe of the perinatal mood and anxiety disorders whereby an individual experiences alternating states of depression and/or mania (euphoria) and loses touch with reality. Postpartum psychosis severely impairs an individual’s thinking and judgment, with symptoms including, but not limited to, hallucinations and/or delusions, cognitive confusion and disorientation, disorganized or racing thoughts, minimal need for sleep, delirium, and excessive restlessness, such as pacing.

“Postpartum depression”, a mood disorder which includes a variety of moderate to severe symptoms of depression, severe anxiety, panic attacks and/or intrusive distressing obsessive thoughts and compulsive ritualistic behavior. Clinical symptoms of depression include, but are not limited to: insomnia and sleep disturbances; loss of pleasure and motivation in usual activities, including lack of interest in the infant sad and depressed mood; lack of clarity in thinking; lack of appetite or interest in eating; feelings of hopelessness, worthlessness and poor self-esteem; extreme fatigue; suicidal thoughts; not feeling like oneself; feeling overwhelmed and unable to cope with life’s demands.

SECTION 2. (a) As used in this section, “perinatal” shall refer to the period of time from pregnancy up until one year following birth.

(b) The department of public health may consult with health care providers, including, but not limited to, obstetricians, gynecologists, pediatricians, primary care providers, nurse midwives, psychiatrists, and mental health clinicians, non-profit organizations, community organizations, organizations providing prenatal childbirth education, and health insurance carriers regarding development of a comprehensive digital resource center on perinatal mood and anxiety disorders, including but not limited to postpartum depression and postpartum psychosis. The department shall create, maintain, and update this digital resource center, which shall be free and available to the public, and shall include information and resources for health care providers and organizations serving perinatal individuals to aid them in treating or making appropriate referrals for individuals experiencing perinatal psychiatric complications, as well as information and resources for perinatal individuals and their families to aid them in understanding and identifying perinatal mood and anxiety disorders and how to navigate available resources.

(c) The department shall issue regulations that require health care providers and organizations providing services to perinatal individuals, including, but not limited to, obstetricians, gynecologists, pediatricians, primary care providers, nurse midwives, psychiatrists, and mental health clinicians, non-profit organizations, community organizations, and organizations providing prenatal childbirth education, to provide information to perinatal individuals and their families about how to access the digital resource center described in subsection (b), or to provide hard copies of the materials included in the digital resource center to individuals unable to access digital resources.

(d) The commissioner of public health shall issue an annual summary of the use of the digital resource center described in subsection (b), including but not limited to which portions of the resource center were the most and least utilized by visitors, and shall annually file the summary with the clerks of the house of representatives and the senate not later than June 30; provided, however, that the first report is due not later than the June 30 following publication of the digital resource center.

SECTION 3. Section 15 of chapter 123 of the General Laws, as so appearing, is hereby amended by inserting after the word “psychologists”, in lines 7 and 8, the following words: provided however, that a defendant who gave birth within 12 months prior to the crime for which the defendant has been charged shall undergo a screening for perinatal psychiatric complications by a treating physician, psychiatrist or psychologist or other qualified physician or psychologist.

SECTION 4. Subsection (a) of section 15 of chapter 123 of the General Laws, as so appearing, is hereby amended by inserting at the end thereof the following new sentence:- When an examination is ordered for a female defendant who suffers or suffered, at the time the crime for which the defendant has been charged with occurred, from mental illness related to a perinatal psychiatric complication such as postpartum psychosis or postpartum depression, said examination shall be conducted by an expert in reproductive psychiatry within 48 hours of such order.

SECTION 5. Section 16 of chapter 123 of the General Laws, as so appearing, is hereby amended by inserting at the end thereof the following new subsection:-

(g) Any person committed to a facility under the provisions of this section who suffers from mental illness related to a perinatal psychiatric complication such as postpartum psychosis or postpartum depression shall receive a diagnosis and treatment plan made in consultation with an expert in reproductive psychiatry. Additional services, including but not limited to parenting assessment, parenting capacity building, and parent-child dyadic therapy shall be made available if deemed appropriate by the consulting expert.

SECTION 6. Chapter 123 of the General Laws, as so appearing, is hereby amended by adding the following section:- Section 37. (a) The department shall appoint a community program director to coordinate the department’s role provided for in this section in a particular county or region.

(b) Any person committed to a state hospital or other treatment facility under the provisions of section 16 may be placed on outpatient status, from that commitment subject to the procedures and provisions of this section.

(c) In the case of any person charged with and found incompetent to stand trial or not guilty by reason of mental illness or mental defect in such proceedings of murder, a violation in which the victim suffers intentionally inflicted great bodily injury, or an act which poses a serious threat of bodily harm to another person, outpatient status under this section shall not be available until that person has actually been confined in a state hospital or other treatment facility for 180 days or more after having been committed under the provisions of law specified in section 16, unless the court finds a suitable placement, including, but not limited to, an outpatient placement program, that would provide the person with more appropriate mental health treatment and the court finds that the placement would not pose a danger to the health or safety of others, including, but not limited to, the safety of the victim and the victim’s family.

(d) In the case of any person charged with and found incompetent to stand trial or not

guilty by reason of mental illness or mental defect of any misdemeanor or any felony other than those described in subsection (c), or found not guilty of any misdemeanor by reason of mental illness or mental defect outpatient status under this section may be granted by the court prior to actual confinement in a state hospital or other treatment facility under the provisions of law specified in section 16.

(e) Before any person subject to the provisions of subsection (d) may be placed on outpatient status, the court shall consider all of the following criteria:

(i) In the case of a person who is an inpatient, whether the director of the state hospital or other treatment facility to which the person has been committed advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, and will benefit from such outpatient status.

(ii) In all cases, whether the community program director or a designee advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, will benefit from such status, and identifies an appropriate program of supervision and treatment. In the case of a female defendant who suffers from mental illness related to a perinatal psychiatric complication such as postpartum psychosis or postpartum depression, an appropriate treatment program shall be identified in consultation with an expert in reproductive psychiatry. Additional services, including but not limited to parenting assessment, parenting capacity building and parent-child dyadic therapy shall also be made available if deemed appropriate by the consulting expert.

(f) Prior to determining whether to place the person on outpatient status, the court shall provide actual notice to the prosecutor and defense counsel, and to the victim, and shall hold a hearing at which the court may specifically order outpatient status for the person.

(g) The community program director or a designee shall prepare and submit the evaluation and the treatment plan specified in paragraph (ii) of subsection (e) to the court within 15 calendar days after notification by the court to do so, except that in the case of a person who is an inpatient, the evaluation and treatment plan shall be submitted within 30 calendar days after notification by the court to do so.

(h) Any evaluations and recommendations pursuant to paragraphs (i) and (ii) of subsection (e) shall include review and consideration of complete, available information regarding the circumstances of the criminal offense and the person’s prior criminal history.

(i) Before any person subject to subsection (c) of this section may be placed on outpatient status the court shall consider all of the following criteria:

(i) Whether the director of the state hospital or other treatment facility to which the person has been committed advises the committing court and the prosecutor that the defendant would no longer be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community, and will benefit from that status.

(ii) Whether the community program director advises the court that the defendant will benefit from that status, and identifies an appropriate program of supervision and treatment. In the case of a female defendant who suffers from mental illness related to a perinatal psychiatric complication such as postpartum psychosis or postpartum depression, an appropriate treatment program shall be identified in consultation with an expert in reproductive psychiatry. Additional services, including but not limited to parenting assessment, parenting capacity building and parent-child dyadic therapy shall also be made available if deemed appropriate by the consulting expert.

(j) Prior to release of a person under subsection (c), the prosecutor shall provide notice of the hearing date and pending release to the victim or next of kin of the victim of the offense for which the person was committed where a request for the notice has been filed with the court, and after a hearing in court, the court shall specifically approve the recommendation and plan for outpatient status. The burden shall be on the victim or next of kin to the victim to keep the court apprised of the party’s current mailing address.

(k) In any case in which the victim or next of kin to the victim has filed a request for notice with the director of the state hospital or other treatment facility, he or she shall be notified by the director at the inception of any program in which the committed person would be allowed any type of day release unattended by the staff of the facility.

(l) The community program director shall prepare and submit the evaluation and the treatment plan specified in paragraph (ii) of subsection (i) to the court within 30 calendar days after notification by the court to do so.

(m) Any evaluations and recommendations pursuant to paragraphs (i) and (ii) of subsection (i) shall include review and consideration of complete, available information regarding the circumstances of the criminal offense and the person’s prior criminal history.

(n) Upon receipt by the committing court of the recommendation of the director of the state hospital or other treatment facility to which the person has been committed that the person may be eligible for outpatient status as set forth in paragraph (i) of subsection (e) or (i) of this section, the court shall immediately forward such recommendation to the community program director, prosecutor, and defense counsel. The court shall provide copies of the arrest reports and the state summary criminal history information to the community program director.

(o) Within 30 calendar days the community program director or a designee shall submit to the court and, when appropriate, to the director of the state hospital or other treatment facility, a recommendation regarding the defendant’s eligibility for outpatient status, as set forth in paragraph (ii) of subsection (e) or (i) and the recommended plan for outpatient supervision and treatment. The plan shall set forth specific terms and conditions to be followed during outpatient status. The court shall provide copies of this report to the prosecutor and the defense counsel.

(p) The court shall calendar the matter for hearing within 15 business days of the receipt of the community program director’s report and shall give notice of the hearing date to the prosecutor, defense counsel, the community program director, and, when appropriate, to the director of the state hospital or other facility. In any hearing conducted pursuant to this section, the court shall consider the circumstances and nature of the criminal offense leading to commitment and shall consider the person’s prior criminal history.

(q) The court shall, after a hearing in court, either approve or disapprove the recommendation for outpatient status. If the approval of the court is given, the defendant shall be placed on outpatient status subject to the terms and conditions specified in the supervision and treatment plan. If the outpatient treatment occurs in a county other than the county of commitment, the court shall transmit a copy of the case record to the superior court in the county where outpatient treatment occurs, so that the record will be available if revocation proceedings are initiated pursuant to subsection (w) or (x).

(r) The department shall be responsible for the supervision of persons placed on outpatient status under this title. The commissioner shall designate, for each county or region, a community program director who shall be responsible for administering the community treatment programs for persons committed from that county or region under the provisions specified in subsection (b).

(s) The department shall notify in writing the chief justice of the trial court, the district attorney of each county, and the executive director of the committee on public counsel services as to the person designated to be the community program director for each county or region, and timely written notice shall be given whenever a new community program director is to be designated.

(t) The community program director shall be the outpatient treatment supervisor of persons placed on outpatient status under this section. The community program director may delegate the outpatient treatment supervision responsibility to a designee.

(u) The outpatient treatment supervisor shall, at 90-day intervals following the beginning of outpatient treatment, submit to the court, the prosecutor and defense counsel, and to the community program director, where appropriate, a report setting forth the status and progress of the defendant.

(v) Outpatient status shall be for a period not to exceed 1 year. At the end of the period of outpatient status approved by the court, the court shall, after actual notice to the prosecutor, the defense counsel, and the community program director, and after a hearing in court, either discharge the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status. Prior to such hearing, the community program director shall furnish a report and recommendation to the medical director of the state hospital or other treatment facility, where appropriate, and to the court, which the court shall make available to the prosecutor and defense counsel. The person shall remain on outpatient status until the court renders its decision unless hospitalized under other provision of the law. The hearing pursuant to the provisions of this section shall be held no later than 30 days after the end of the 1 year period of outpatient status unless good cause exists. The court shall transmit a copy of its order to the community program director or a designee.

(w) If at any time during the outpatient period, the outpatient treatment supervisor is of the opinion that the person requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision, the community program director shall notify the superior court in either the county which approved outpatient status or in the county where outpatient treatment is being provided of such opinion by means of a written request for revocation of outpatient status. The community program director shall furnish a copy of this request to the defense counsel and to the prosecutor in both counties if the request is made in the county of treatment rather than the county of commitment. Within 15 business days, the court where the request was filed shall hold a hearing and shall either approve or disapprove the request for revocation of outpatient status. If the court approves the request for revocation, the court shall order that the person be confined in a state hospital or other treatment facility approved by the community program director. The court shall transmit a copy of its order to the community program director or a designee. Where the county of treatment and the county of commitment differ and revocation occurs in the county of treatment, the court shall enter the name of the committing county and its case number on the order of revocation and shall send a copy of the order to the committing court and the prosecutor and defense counsel in the county of commitment.

(x) If at any time during the outpatient period the prosecutor is of the opinion that the person is a danger to the health and safety of others while on that status, the prosecutor may petition the court for a hearing to determine whether the person shall be continued on that status. Upon receipt of the petition, the court shall calendar the case for further proceedings within 15 business days and the clerk shall notify the person, the community program director, and the attorney of record for the person of the hearing date. Upon failure of the person to appear as noticed, if a proper affidavit of service has been filed with the court, the court may issue a capias to compel the attendance of such person. If, after a hearing in court conducted using the same standards used in conducting probation revocation hearings pursuant to section 3 of chapter 279, the judge determines that the person is a danger to the health and safety of others, the court shall order that the person be confined in a state hospital or other treatment facility which has been approved by the community program director.

(y) Upon the filing of a request for revocation under subsection (w) or subsection (x) and pending the court’s decision on revocation, the person subject to revocation may be confined in a facility designated by the community program director when it is the opinion of that director that the person will now be a danger to self or to another while on outpatient status and that to delay confinement until the revocation hearing would pose an imminent risk of harm to the person or to another. The facility so designated shall continue the patient’s program of treatment, shall provide adequate security so as to ensure both the safety of the person and the safety of others in the facility, and shall, to the extent possible, minimize interference with the person’s program of treatment. Upon the request of the community program director or a designee, a peace officer shall take, or cause to be taken, the person into custody and transport the person to a facility as described in subsection (z) and designated by the community program director for confinement under this section. Within 1 business day after the person is confined in a jail under this section, the community program director shall apply in writing to the court for authorization to confine the person pending the hearing under subsection (w) or subsection (x). The application shall be in the form of a declaration, and shall specify the behavior or other reason justifying the confinement of the person in a jail. Upon receipt of the application for confinement, the court shall consider and rule upon it, and if the court authorizes detention in a jail, the court shall actually serve copies of all orders and all documents filed by the community program director upon the prosecuting and defense counsel. The community program director shall notify the court in writing of the confinement of the person and of the factual basis for the opinion that the immediate confinement in a jail was necessary. The court shall supply a copy of these documents to the prosecutor and defense counsel.

(z) The facility designated by the community program director may be a state hospital, a local treatment facility, a county jail, or any other appropriate facility, so long as the facility can continue the person’s program of treatment, provide adequate security, and minimize interference with the person’s program of treatment. If the facility designated by the community program director is a county jail, the patient shall be separated from the general population of the jail. A county jail may not be designated unless the services specified above are provided, and accommodations are provided which ensure both the safety of the person and the safety of the general population of the jail. Within 3 business days of the patient’s confinement in a jail, the community program director shall report to the court regarding what type of treatment the patient is receiving in the facility. If there is evidence that the treatment program is not being complied with, or accommodations have not been provided which ensure both the safety of the committed person and the safety of the general population of the jail, the court shall order the person transferred to an appropriate facility, including an appropriate state hospital.

(aa) A resentencing hearing shall be allowed in the following cases, in addition to those permitted under other sections:

At the time of the offense, the defendant was suffering from a serious perinatal psychiatric complication, a mental illness such as postpartum depression or postpartum psychosis, which though insufficient to establish the defense of insanity, substantially affected his or her ability to understand his or her acts or to conform his or her conduct to the requirements of the law.

At the time of the offense, the defendant was suffering from postpartum depression or postpartum psychosis which was either undiagnosed by a qualified medical professional (physician, psychiatrist or psychologist) or untreated or unsuccessfully treated, and this temporary mental illness tended to excuse or justify the defendant’s criminal conduct and was not used in trial or sentencing.

(bb) Nothing in this section shall prevent hospitalization pursuant to the provisions of section 12.

(cc) A person whose confinement in a treatment facility under subsection (w) or subsection (x) is approved by the court shall not be released again to outpatient status unless court approval is obtained under subsection (e) or subsection (i).

(dd) No person who is on outpatient status pursuant to this section shall leave this state without first obtaining prior written approval to do so from the committing court. The prior written approval of the court for the person to leave this state shall specify when the person may leave, when the person is required to return, and may specify other conditions or limitations at the discretion of the court. The written approval for the person to leave this state may be in a form and format chosen by the committing court.

(ee) In no event shall the court give written approval for the person to leave this state without providing notice to the prosecutor, the defense counsel, and the community program director. The court may conduct a hearing on the question of whether the person should be allowed to leave this state and what conditions or limitations, if any, should be imposed.

(ff) Any person who violates subsection (dd) is guilty of a misdemeanor and upon conviction shall by punished by imprisonment for not more than 6 months in a house of correction or by a fine of not more than $1,000.

(gg) The department shall be responsible for the community treatment and supervision of judicially committed patients. These services shall be available on a county or regional basis. The department may provide these services directly or through contract with private providers. The program or programs through which these services are provided shall be known as the forensic conditional release program.

(hh) The department shall contact all regional mental health programs by January 1, 2024, to determine their interest in providing an appropriate level of supervision and treatment of judicially committed patients at reasonable cost. Regional mental health programs may agree or refuse to operate such a program.

(ii) No later than January 1, 2025, and by January 1 of each subsequent year, all state hospitals or other treatment facilities participating in the forensic conditional release program shall report to the commissioner the following information: (i) the cost of the program to the facility; (ii) the demographic profiles of persons receiving supervision and treatment in the program; and (iii) the rates of adherence to treatment under the program.

(jj) No later than January 1, 2025, and by January 1 of each subsequent year, the chief justice of the trial court shall report to the commissioner the following information: rates and types of reoffense while these persons are served by the program and after their discharge.

(kk) The department shall conduct yearly evaluations of the forensic conditional release program. An evaluation of the program shall determine its effectiveness in successfully reintegrating these persons into society after release from state institutions. This evaluation of program effectiveness shall include, but not be limited to, a determination of the rates of reoffense while these persons are served by the program and after their discharge. This evaluation shall also address the effectiveness of the various treatment components of the program and their intensity.

(ll) The department shall ensure consistent data gathering and program standards for use statewide by the forensic conditional release program.

(mm) The department of correction, and the executive office of public safety and security shall cooperate with the department in conducting this evaluation.

(nn) The administrators and the supervision and treatment staff of the forensic conditional release program shall not be held criminally or civilly liable for any criminal acts committed by the persons on parole or judicial commitment status who receive supervision or treatment.

(oo) The court retains jurisdiction over the person until the end of the period of the assisted outpatient treatment established under this section or until the court finds that the person no longer meets the criteria in this section.

SECTION 7. In all cases in which the penalty of life imprisonment without the possibility of parole may be authorized, mitigating circumstances shall be any factors proffered by the defendant or the commonwealth which are relevant to a finding that a defendant suffered from mental illness related to a perinatal psychiatric complication such as postpartum psychosis or postpartum depression at the time the offense was committed.

Name:	District/Address:	Date Added:
James J. O'Day	14th Worcester	4/20/2023
Jessica Ann Giannino	16th Suffolk	6/14/2023